Exhibit No. 10(c)(*)
EMPLOYMENT
AGREEMENT
(as Amended and Restated December 31,
2008)
THIS EMPLOYMENT AGREEMENT (this
“ Agreement ”), dated as of the 31st day
December, 2008, is made by and between Regis Corporation, a
Minnesota corporation (the “ Corporation ”), and
Randy L. Pearce (the “ Executive ”).
RECITALS
WHEREAS, the Corporation and the
Executive are parties to that certain Senior Officer Employment and
Deferred Compensation Agreement, dated April 14, 1998, as
subsequently amended (the “ Original Agreement
”); and
WHEREAS, the Corporation and the
Executive also are parties to an agreement dated May 24, 2005,
regarding a policy insuring the life of the Executive (the “
Insurance Agreement ”); and
WHEREAS, the Corporation and the
Executive, by an agreement dated as of May 9, 2007
(“2007 Agreement”), terminated the Original Agreement
and consolidated the terms and conditions of the Insurance
Agreement in the 2007 Agreement; and
WHEREAS, the Corporation and the
Executive wish to further amend and restate the 2007 Agreement as
of the date hereof to make certain changes to comply with
Section 409A of the Internal Revenue Code of 1986, as amended
(the “ Code ”) (this restatement is referred to
herein as the “Agreement”).
AGREEMENT
NOW, THEREFORE, in consideration of
the provisions of this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Corporation agrees to employ the Executive, and
the Executive agrees to such employment, upon the following terms
and conditions:
1.
EFFECTIVE DATE; PERIOD OF EMPLOYMENT .
(a)
Effective Date . This Agreement shall be effective on
December 31, 2008 (the “ Effective Date ”);
the 2007 Agreement was effective on May 9, 2007 (the “
2007 Agreement Effective Date ”).
(b)
Period of Employment . The employment of the Executive
by the Corporation pursuant to this Agreement shall be for a period
(sometimes referred to herein as the “ period of
employment ”) beginning on the 2007 Agreement Effective
Date and continuing, unless sooner terminated as provided in
Section 6 herein, until midnight on the day immediately
preceding the fifth anniversary of the 2007 Agreement Effective
Date. The Corporation and the Executive recognize and
acknowledge that this
Agreement does not provide for any
automatic renewal. Notwithstanding the end of the
Executive’s period of employment, this Agreement shall remain
in full force and effect thereafter for the purpose of determining
the Executive’s entitlement to any payments due under
Sections 4(e) and (f) hereof.
(c)
Definitions . Various terms are defined either where
they first appear underlined in this Agreement or in
Section.
2.
DUTIES . During the period of employment, the
Executive shall serve as Senior Executive Vice President and Chief
Financial and Administrative Officer of the Corporation, and in
such other additional office or offices to which he shall be
elected by the Board of Directors of the Corporation (“
Board ”) with his approval, performing the duties of
such office or offices held at the time and such other duties not
inconsistent with his position as such an officer or director as
are assigned to him by the Board or committees of the Board.
During the period of employment, the Executive shall devote his
full time and attention to the business of the Corporation and the
discharge of the aforementioned duties, except for reasonable
vacations, absences due to illness, and reasonable time for
attention to personal affairs and charitable activities.
3.
OFFICE FACILITIES . During the period of employment,
the Executive shall have his office where the Corporation’s
principal executive offices are located from time to time, which
currently are at 7201 Metro Boulevard, Edina, Minnesota and the
Corporation shall furnish Executive with office facilities
reasonably suitable to his position at such location.
4.
COMPENSATION . As compensation for his services
performed hereunder, the Corporation shall pay or provide to the
Executive the following:
(a)
Base Salary . The Corporation shall pay the Executive
a base salary (the “ Base Salary ”), calculated
at the rate of Four Hundred Seventy-Five Thousand Dollars
($475,000.00) per annum (which Base Salary may be increased, but
not reduced, by the Compensation Committee of the Board (the
“ Compensation Committee ”) at any time and from
time to time in its discretion), payable monthly, semi-monthly or
weekly according to the Corporation’s general practice for
its executives, for the period of employment under this
Agreement. Such Base Salary may be increased annually by an
amount determined by the Compensation Committee. Such Base
Salary, including such annual increases (which shall be considered
part of the Base Salary), shall not be reduced during the period of
employment hereunder.
(b)
Bonus . The Executive shall be eligible for an annual
performance bonus (the “ Bonus ”) as determined
under the provisions of the Regis Corporation 2004 Short Term
Incentive Compensation Plan, as amended from time to time, any
successor to such plan, or such other annual incentive compensation
program developed for the Corporation’s executive
officers.
(c)
Other Incentive Plans . During the period of
employment, the Executive shall be eligible to participate in such
other incentive compensation programs in accordance with their
terms as the Corporation may have in effect from time to time
for
2
its executive personnel (including
the Regis Corporation Long Term Incentive Plan, as amended from
time to time, and any successor thereto), other than any annual
cash bonus plan (which is dealt with in
Section 4(b) hereof), and all compensation and other
entitlements earned thereunder shall be in addition to, and shall
not in any way reduce, the amount payable as Base Salary and
Bonus.
(d)
Restricted Stock Units . On the 2007 Agreement
Effective Date, the Corporation shall grant the Executive
restricted stock units with respect to Fifty Thousand (50,000)
shares of the Corporation’s common stock, subject to the
terms and conditions of the Regis Corporation 2004 Long Term
Incentive Plan, including any amendments made to provide for such
awards. Such restricted stock units shall remain unvested and
forfeitable until the day immediately preceding the fifth
anniversary of the 2007 Agreement Effective Date; at such time the
restricted stock units shall become fully (100%) vested, provided
the Executive is employed by the Corporation (or a subsidiary of
the Corporation) on such date. Payment of such restricted
stock units automatically shall be deferred until January 31
of the calendar year next following the vesting date provided in
the immediately preceding sentence.
(e)
Payment to Cover Life Insurance Premiums or Other Purposes
. The Corporation previously agreed under the Insurance
Agreement to pay the Executive, for a period of ten
(10) years, an amount equal to the annual premium on a a
policy with a face amount of Two Million Five Hundred Dollars
($2,500,000) insuring the Executive’s life, plus a gross-up
for the federal and state income taxes imposed on such payment. In
lieu of such payments and subject to the last sentence of this
Section 4(e), the Corporation shall pay the Executive the sum
of One Hundred and Twenty Thousand Dollars ($120,000) annually for
three years starting in 2008, which the Executive may use to
continue to pay life insurance premiums, income tax obligations or
as the Executive otherwise may determine. The
Corporation’s obligation to make the payments provided for
under this Section 4(e) shall cease upon the termination
of this Agreement by the Corporation for Cause (as defined in
Section 8 hereof).
(f)
Retirement Benefit . The Corporation shall pay to the
Executive, if living, or, if not, to his surviving spouse or other
designated beneficiary (either sometimes referred to as the
Executive’s “ Beneficiary ”) or to the
Executive’s estate if there is no surviving Beneficiary, the
following sums (sometimes referred to as his “ Retirement
Benefit ”) upon the terms and conditions and for the
periods hereinafter set forth:
(i)
Payments upon Retirement . On the last day of the
month next following the month in which the Executive
(1) retires from employment with the Corporation after
attaining age 65, or (2) reaches age 65 if he is then disabled
within the meaning of Section 4(f)(iv), the Corporation shall
pay to the Executive a lump sum cash payment of an amount equal to
the present value of his Vested Monthly Benefit. For the purpose of
determining the present value, the following assumptions shall
apply:
3
(1)
Interest: Payments shall be discounted to present value at a rate
of interest equal to the yield to maturity of 30-year U.S. Treasury
Notes as of the Executive’s termination of
employment.
(2)
Payment Duration: It shall be assumed that payments of the
Vested Monthly Benefit will be made for two hundred and forty (240)
months.
Notwithstanding the foregoing in
this subparagraph 4(f)(i), Executive shall be entitled, by written
election to the Corporation’s Board of Directors, to receive,
in connection with a termination of employment at or after age 65,
to have his Vested Monthly Benefit paid in monthly payments rather
than the lump-sum described above, provided (x) Executive
makes such written election more than 12 months before Executive
attains age 65 (y) such election is not effective for 12
months, and (z) the first installment of the Vested Monthly
Benefit is paid five years after the month next following the month
of such termination of employment (or if earlier, upon death or
disability pursuant to subparagraphs 4(f)(iii) and (iv),
respectively). Pursuant to (and subject to the requirements
of) transitional relief provided with respect to initial and
redeferral elections under Code Section 409A (including
without limitation, IRS Notice 2005-1, Notice 2006-79, the Preamble
to the final Section 409A treasury regulations, and Notice
2007-86, any election made on or before December 31, 2008
shall not be subject to the foregoing timing
requirements.
If this election is made, the Vested
Monthly Benefit will be paid for two hundred and forty (240)
months. If Executive dies before receiving all 240 monthly
payments specified herein, the Corporation shall pay to the
Executive’s Beneficiary the remaining monthly payments as
they become due as provided above.
(ii)
Early Termination . In the event the Executive has a
termination of employment with the Corporation before
reaching age 65 (unless the Executive has been terminated by the
Corporation for Cause, or if the termination is by reason of
disability pursuant to subparagraph 4(f)(iv), or by reason of
death), then, on the last day of the month next following the month
of the Employee’s termination of employment, the Corporation
shall pay to the Executive a lump sum cash payment of an amount
equal to the present value of his Discounted Vested Monthly
Benefit. For the purpose of determining the present value,
the following assumptions shall apply:
(1)
Interest: Payments shall be discounted to present value at a rate
of interest equal to the yield to maturity of 30-year U.S. Treasury
Notes as of the Executive’s termination of
employment.
(2)
Payment Duration: It shall be assumed that payments of the
Discounted Vested Monthly Benefit will be made for two hundred and
forty (240) months.
4
Notwithstanding the foregoing in
this subparagraph 4(f)(ii), Executive shall be entitled, by written
election to the Corporation’s Board of Directors, to receive,
in connection with Executive’s termination of employment
prior to age 65, to (i) be paid the lump sum cash payment on
the basis of his Vested Monthly Benefit rather than the Discounted
Vested Monthly Benefit (or based on his Discounted Vested Monthly
Benefit but commencing at a later date if the payment date is prior
to age 65), and/or (ii) to be paid in monthly payments rather
than the lump-sum described above, provided (x) Executive
makes such written election more than 12 months before
Employee’s termination of employment (y) such election
is not effective for 12 months following the date the election is
made, and (z) the first installment of the Monthly Benefit (or
the lump sum payment as applicable) is paid no earlier than five
years after the month next following the month of Employee’s
termination of employment (or if earlier, upon death or disability
pursuant to subparagraphs 4(f)(iii) or (iv),
respectively). Pursuant to (and subject to the requirements
of) transitional relief provided with respect to initial and
redeferral elections under Code Section 409A (including
without limitation, IRS Notice 2005-1, Notice 2006-79, the Preamble
to the final Section 409A treasury regulations, and Notice
2007-86, any election made on or before December 31, 2008
shall not be subject to the foregoing timing
requirements.
If monthly payments are elected, the
Vested Monthly Benefit (or the Discounted Vested Monthly Benefit
(if payment commences prior to age 65)) will be paid for two
hundred and forty (240) months. If Executive dies before
receiving all two hundred and forty (240) monthly payments
specified herein, the Corporation shall pay to Executive’s
Beneficiary the remaining unpaid monthly payments as they become
due as provided above.
(iii)
Payments upon Death before Separation . If the
Executive dies while employed by the Corporation, during the first
six (6) months of disability, or while disability payments are
being paid under subparagraph (iv), the Corporation shall pay to
Executive’s Beneficiary a lump sum cash payment of an amount
equal to the present value of Executive’s Monthly Benefit
(based on the assumptions listed in subparagraph (ii), but with the
30-year Treasury Note rate determined at the Executive’s
death), provided, however, that if Employee elected to receive
monthly payments rather than a lump sum (as provided under
subparagraph (i) and (ii), as applicable based on the age of
the Executive at death), the Corporation shall pay to
Executive’s Beneficiary Executive’s full Monthly
Benefit for two hundred and forty (240) months. The lump sum
payment or the first monthly payment, as applicable, shall be paid
within thirty (30) days after Executive’s death.
(iv)
Payments During Disability . In addition to the
payments provided in Section 4(f)(i) and (ii), should the
Executive become disabled while employed by the Corporation, and
such disability continues for a period of six (6) months,
the Corporation shall pay to the Executive his Monthly
Benefit during each month that the Executive remains disabled until
he attains age 65 or until his death prior to attaining such age,
at which time the payment provided in
5
Section 4(f)(i), (ii) or
(iii) (whichever is applicable) shall be paid or begin (in the
case of a lump sum, the 30-year Treasury Note rate shall be
determined at age 65 or death, as applicable). The first
payment under this Section 4(f)(iv) shall be made
during the seventh month of such disability, and each succeeding
payment shall be made on the same date of each succeeding
month thereafter. Payments shall be made under this
Section 4(f)(iv) only if the Executive is disabled within
the meaning of the disability clause of the Corporation’s
long term disability insurance policy or program as then in effect
and within the meaning of “disability” as set forth in
Treas. Reg. § 1.409A-3(i)(4).
(v)
Termination for Cause . If the Executive’s
employment with the Corporation is terminated at any time for Cause
(as defined in Section 8), the Corporation shall have no
obligation to make any payments to him or his Beneficiary under
this Section 4(f) and all such future payments shall be
forfeited.
(g)
Health, Welfare and Retirement Plans; Vacation .
During the period of employment, the Executive shall be entitled
to:
(i)
participate in such retirement, health (medical, hospital and/or
dental) insurance, life insurance, disability insurance, flexible
benefits arrangements and accident insurance plans and programs as
are maintained in effect from time to time by the Corporation for
its headquarters employees;
(ii)
participate in other non-duplicative benefit programs which the
Corporation may from time to time offer generally to headquarters
personnel of the Corporation; and
(iii)
take vacations and be entitled to sick leave in accordance with the
Corporation’s policy for executive personnel of the
Corporation.
(h)
Expenses . Executive shall be reimbursed for
reasonable business expenses incurred in connection with the
performance of his duties hereunder consistent with the
Company’s policy regarding reimbursement of such
expenses. With respect to any benefits or payments received
or owed to the Executive hereunder, the Executive shall cooperate
in good faith with the Corporation to structure such benefits or
payments in the most tax-efficient manner to the
Corporation.
5.
EFFECT OF DISABILITY AND CERTAIN HAZARDS . The
Executive shall not be obligated to perform the services required
of him by this Agreement during any period in which he is disabled
or his health is impaired to an extent which would render his
performance of such services hazardous to his health or life, and
relief from such obligation shall not in any way affect his rights
hereunder except to the extent that such disability or health
impairment may result in termination of his employment by the
Corporation pursuant to Section 6 herein.
6.
TERMINATION OF EMPLOYMENT . The employment of the
Executive by the Corporation pursuant to this Agreement may be
terminated by the Corporation or the Executive at any time, as
follows:
6
(a)
Death . In the event of the Executive’s death
prior to the expiration of the period of employment hereunder, such
employment shall terminate on the date of death.
(b)
Permanent Disability . The Executive’s
employment may be terminated by the Corporation prior to the
expiration of the period of employment hereunder due to
Executive’s physical or mental disability or health
impairment which prevents the effective performance by the
Executive of his duties hereunder on a full time basis, with such
termination to occur (i) with respect to disability, on or
after the time which the Executive becomes entitled to disability
compensation benefits under the Corporation’s long term
disability insurance policy or program as then in effect or
(ii) with respect to health impairment, after Executive has
been unable to substantially perform his services hereunder for six
consecutive months. Any dispute as to the Executive’s
physical or mental disability or health impairment shall be settled
by the opinion of an impartial physician selected by the parties or
their representatives or, in the event of failure to make a joint
selection after request therefor by either party to the other, a
physician selected by the Corporation, with the fees and expenses
of any such physician to be borne by the Corporation.
(c)
Cause . The Corporation, by giving written notice of
termination to the Executive, may terminate such employment at any
time prior to the expiration of the period of employment hereunder
for “ Cause ” (as defined in
Section 8).
(d)
Without Cause . The Corporation may terminate such
employment at any time prior to said date without Cause (which
shall be for any reason not covered by preceding Sections
6(a) through (c)) upon sixty (60) days prior written notice to
the Executive.
(e)
By the Executive . The Executive may terminate such
employment at any time for an applicable Good Reason (as defined in
Section 8), subject to Section 6(f). The Executive
may also terminate such employment for any other reason upon prior
written notice thereof to the Corporation, and the Executive agrees
to use his reasonable best efforts to provide twelve (12)
months’ prior written notice in such event.
(f)
Notice of Good Reason . If the Executive believes that
he is entitled to terminate his employment with the Corporation for
an applicable Good Reason, he may apply in writing to the
Corporation for confirmation of such entitlement prior to the
Executive’s actual separation from employment, by following
the claims procedure set forth in Section 11 hereof. The
submission of such a request by the Executive shall not constitute
“Cause” for the Corporation to terminate the Executive
under Section 6(c) hereof; and the Executive shall
continue to receive all compensation and benefits he was receiving
at the time of such submission throughout the resolution of the
matter pursuant to the procedures set forth in Section 11
hereof. If the Executive’s request for a termination of
employment for Good Reason is denied under both the request and
appeal procedures set forth in Sections 11(a) and
(b) hereof, then the parties shall promptly submit the claim
to binding arbitration pursuant to Section 11(c) and use
their best efforts to conclude the arbitration within ninety (90)
days after the claim is submitted.
7
(g)
Notice of Termination . Any termination of the
Executive’s employment by the Corporation or by the Executive
(other than termination based on the Executive’s death) shall
be communicated by a written Notice of Termination to the other
party hereto. For purposes of this Agreement, a “
Notice of Termination ” shall mean a notice which
shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Executive’s employment under the provision so
indicated. For purposes of this Agreement, no purported
termination shall be effective without the delivery of such Notice
of Termination.
(h)
Date of Termination . The “ date of
termination ” of the Executive’s employment shall
mean (i) if the Executive is terminated by his death, the date
of his death, (ii) if the Executive’s employment is
terminated due to a permanent disability or health impairment,
thirty (30) days after the Notice of Termination is given (provided
that the Executive shall not have returned to the performance of
his duties on a full-time basis during such period), (iii) if
the Executive’s employment is terminated pursuant to a
termination for Cause, the date specified in the Notice of
Termination, and (iv) if the Executive’s employment is
terminated for any other reason, the date shall be the later of
thirty (30) days after termination as provided by the Notice of
Termination or the date of the final resolution of the arbitration
and claims procedures set forth in Section 11 hereof, unless
otherwise agreed by the Executive and Corporation or otherwise
provided in this Agreement.
7.
PAYMENTS UPON TERMINATION .
(a)
Death or Disability . If the Executive’s
employment is terminated by reason of his death or permanent
disability, he (or the legal representative of his estate in the
event of his death) shall be entitled to the following:
(i)
Accrued Compensation . All compensation due the
Executive under this Agreement and under each plan or program of
the Corporation in which he may be participating at the time shall
cease to accrue as of the date of such termination, exce